White v. United States (241 U.S. 149)

Appellant is the receiver of the firm of Cowardin, Bradley, Clay, & Company, and the successor of one John D. McClennan. The latter filed in the court of claims a petition, subsequently amended by appellant, praying a judgment against the United States for the sum of $43,510, the amount due that company on a contract for labor and materials furnished for the construction of a filtration plant in the District of Columbia.

The court found, among other things, that there is a driveway running completely about the reservoir, which is an irregularly shaped body of water, comprising the western and southern part of the filtration plant. The starting point of 'the roadway' (so-called by the court), its course and termination, are stated.

The set of plans attached to the written contract, and by its terms made a part of the agreement, included certain plans showing the roadway bordering the reservoir west of the filter beds. One of the plans (sheet 2) was a drawing showing the work in general sections; another plan (sheet 4) was a general plan and showed finished surfaces; and general plan No. 1 showed the entire projected plant. All of these plans indicated a roadway, and sheet No. 16 also indicated a roadway.

Afterwards two supplemental plans, relating to the roadway and giving details as to grades, were furnished the contractor.

Appellant's predecessor, McClennan, began work on the roadway in January or February, 1904. It does not appear that the contractor was ordered in terms by the government engineers to build the roadway, but it is shown that when he commenced work on it the engineers gave him the line of the toe of the slope, and from time to tiem furnished him with the lines showing the direction of the road and the stakes showing the grade, and that the work was done under their inspection as to the lines, slopes, and the character of the material allowed to be deposited thereon.

The contractor began to build the roadway by filling with earth excavated from other parts of the work, and he continued to fill in and build the roadway in accordance with the plans and under the inspection of the engineers until February 14, 1905, and had been paid at various times about $12,000 on account of the work done on estimates made by the government. The first payment was on voucher, month of March, 1904, covering all work done on the road up to the end of February, 1904, for 'embankment (A, item No. 2), 13,000 cubic yards, at 30 cents, less 10 per cent retained, amounting to $3,510.' Except for said voucher no separate estimates were made of the amount of fill placed in the roadway, the work done thereon being included in the regular monthly estimates with the work done on other portions of the filtration plant.

Shortly after McClennan was appointed receiver in August, 1903, he made arrangements with the Soldiers' Home authorities, at a considerable cost, to dispose of waste material on the Soldiers' Home grounds under certain conditions, the terms of which, so far as the amount of material to be placed thereon is concerned, were never carried out. The roadway was just as convenient a place as any to dispose of waste material, and the cost of putting it there was no more than it would have been to have placed it on the Soldiers' Home grounds.

McClennan, he then being receiver, was informed by the engineer officer in charge on behalf of the United States that he would not allow any further payments for work done on the roadway. For a short time afterward, and pending negotiations regarding the matter with the engineer officer, appellant continued dumping material that he wanted to dispose of on the roadway. He finally discontinued work thereon, on, at which time about 6,000 cubic yards of fill was necessary to complete the roadway. It was subsequently finished by the United States without further cost.

In the final settlement there was deducted from the amount paid a sum equal to such of the fill in the roadway as had been paid for at the rate of 30 cents per cubic yard, amounting to about $12,000.

'On or about February 15, 1904, the government engineer in charge had cross sections taken over the line of the roadway in question, which cross sections were used in computing the amount of work done by the contractor thereon outside of the lines allowed and paid for in the final estimate, and the amount of fill so made and not paid for was found to be 67,578 cubic yards, which, at 30 cents per cubic yard, amounts to $20,273.40.'

From these facts the court concluded that appellant was not entitled to recover, and dismissed the petition. Judgment was entered accordingly and this appeal was then prosecuted.

Mr. Chauncey Hackett for appellant.

Assistant Attorney General Thompson for appellee.

Statement by Mr. Justice McKenna:

Mr. Justice McKenna, after stating the facts as above, delivered the opinion of the court: